“Interpreted As It Ought To Be”: Toward a Principled Eighth Amendment
By John Bessler

The views expressed in this blog are not necessarily those of TCP, its committees, or boards. 

John Bessler is an associate professor at the University of Baltimore School of Law and an adjunct professor at the Georgetown University Law Center.  He is the author of Cruel and Unusual: The American Death Penalty and the Founders’ Eighth Amendment (Northeastern University Press, 2012) and The Birth of American Law: An Italian Philosopher and the American Revolution (Carolina Academic Press, 2014).

“Interpreted as it ought to be interpreted,” the abolitionist Frederick Douglass said in 1852, “the Constitution is a glorious liberty document.”  In his July 5th speech in Rochester, New York, to the town’s Anti-Slavery Sewing Society, Douglass addressed the meaning of the Fourth of July for slaves.

“This Fourth July is yours, not mine,” Douglass told his white audience.  “You may rejoice, I must mourn,” he said at Corinthian Hall, telling the assembled crowd—his “Fellow-citizens”—that “above your national, tumultuous joy, I hear the mournful wail of millions! whose chains, heavy and grievous yesterday, are, to-day, rendered more intolerable by the jubilee shouts that reach them.”

“There are,” Douglass recited, “seventy-two crimes in the State of Virginia which, if committed by a black man (no matter how ignorant he be), subject him to the punishment of death; while only two of the same crimes will subject a white man to the like punishment.”  “[T]he conscience of the nation must be roused,” Douglass said, calling mid-nineteenth-century “shouts of liberty and equality” on July 4th mere “hypocrisy” amidst the “gross injustice and cruelty” of slavery.

Fast forward to 2014, more than 145 years after the 1868 ratification of the Fourteenth Amendment, which, at long last, following slavery’s abolition, guaranteed “equal protection of the laws.”  On October 20th of this year, the U.S. Supreme Court agreed to hear Chappell v. Ayala, a California death penalty case.  In that case, the U.S. Court of Appeals for the Ninth Circuit found that a death-row inmate, tried in 1989 for a triple murder in 1985, was denied a fair trial.  During a three-month jury selection process, all black and Hispanic prospective jurors were struck using peremptory challenges.  Counsel for the defendant, Mexican national Hector Ayala, argued that the strikes were on the basis of race, but the prosecution—and the trial judge—disagreed.

The questions in the U.S. Supreme Court appeal are narrow ones, focused on the application of the legal standard in Brecht v. Abrahamson and the proper interpretation of the Antiterrorism and Effective Death Penalty Act of 1996.  But the case, with its racial overtones, is a bleak reminder that the death penalty is still with us—and that minorities are frequently struck from jury panels in capital cases.  Hector Ayala’s counsel dutifully brought Batson challenges, but they were repeatedly rejected by the district court, which inexplicably allowed the prosecution to offer private, ex parte explanations for its juror strikes.

Equally troubling, the “death-qualification” process—in use for decades, and permitted by the Supreme Court—continues, in case after case, to allow death penalty opponents to be struck from capital juries.  This, it turns out, impacts a disproportionate number of minorities, women, and Catholics—groups that, along with Democrats and younger people, oppose executions in higher numbers.  Because jury verdicts must be unanimous, death sentences are thus far more likely to be imposed if juries, before trial, are stripped of any death penalty opponents.

In early America, the Founding Fathers themselves questioned the need for executions for certain crimes, demonstrating ambivalence about the punishment of death.  George Washington, John Adams, Thomas Jefferson and James Madison—the first four U.S. Presidents—were all admirers of a now little-known book, On Crimes and Punishments.  Written by an Italian criminal-law theorist, Cesare Beccaria, it was, tellingly, the first Enlightenment text to call for the death penalty’s abolition.

George Washington bought a copy of Beccaria’s book in 1769, just two years after the Italian version, Dei delitti e delle pene (1764), was translated into English in 1767.  In April 1777, during the midst of the Revolutionary War itself, then General Washington—the nation’s first commander-in-chief—told a subordinate “we should not introduce Capital executions too frequently.”  Washington, seeking a scale of graduated punishments, asked Congress for more proportionate punishments, one of the central themes of Beccaria’s treatise.

Writing from New York on July 15, 1776, shortly after the issuance of the Declaration of Independence, Washington wrestled mightily with what to do in response to “Inhuman Treatment” and “the Murder of part of our People after their Surrender and Capitulation,” calling British abuses “a flagrant violation of that Faith which ought to be held sacred by all civilized nations.”  If “the claims of humanity are disregarded,” Washington lamented, seeing executions as a last resort, “Justice and Policy will require recourse to be had to the Law of retaliation, however abhorrent and disagreeable to our natures in cases of Torture and Capital Punishments.”

John Adams—the second U.S. President—quoted Beccaria’s treatise at the Boston Massacre trial as he took on the unpopular task of representing British soldiers accused of murder.  “I am for the prisoners at the bar,” Adams said in 1770 in open court, “and shall apologize for it only in the words of the Marquis Beccaria: ‘If by supporting the rights of mankind, and of invincible truth, I shall contribute to save from the agonies of death one unfortunate victim of tyranny, or ignorance, equally fatal, his blessings and tears of transport shall be sufficient consolation to me for the contempt of all mankind.’”  John Quincy Adams, his son, later remarked on the “electrical effect” his father’s words had on spectators.

Thomas Jefferson—our third President—was so taken with Beccaria’s treatise that he copied, in Italian, more than two dozens passages from it into his commonplace book.  He drafted legislation to severely restrict Virginia’s death penalty, and he called the lex talionis a “revolting principle,” telling his friend and mentor, George Wythe, that the idea of an “eye for an eye, and a hand for a hand” was morally questionable and will be “revolting to the humanized feelings of modern times.”

In 1807, Jefferson singled out On Crimes and Punishments as one of only a handful of books he recommended on the principles of government.  And in the 1820s, in his autobiographical reflections, Jefferson wrote this: “Beccaria and other writers on crimes and punishments had satisfied the reasonable world of the unrightfulness and inefficacy of the punishment of crimes by death.”  Plainly, Beccaria’s treatise—full of advice on everything from preventing crimes to the interpretation of the law—profoundly impressed the man from Monticello.

James Madison himself advocated for the passage of Jefferson’s Virginia bill to proportion crimes and punishments—a bill that cited Beccaria’s treatise multiple times in its supporting notes.  After the bill failed to pass by a single vote, Madison lamented to Jefferson that “our old bloody code is by this event fully restored,” a reference to the English “Bloody Code” that made scores of offenses punishable by death.  In 1823, Madison told another correspondent: “I should not regret a fair and full trial of the entire abolition of capital punishments, by any State willing to make it.”

Some founders, like Dr. Benjamin Rush, advocated for the total abolition of the death penalty along with the abolition of slavery.  Others, like James Wilson and Benjamin Franklin, also felt strongly that the death penalty should be curtailed, with many founders invoking Beccaria’s name in their speeches and writings.  As I detail in my new book, The Birth of American Law, early Americans embraced the idea—proposed by Montesquieu and Beccaria—that any punishment that goes beyond “absolute necessity” is “tyrannical.”

In fact, William Bradford, James Madison’s college friend from their days together at Princeton, wrote a whole essay, An Enquiry How Far the Punishment of Death Is Necessary in Pennsylvania (1793).  That essay, inspired by Montesquieu and Beccaria, made clear that if a punishment was unnecessary, it was unjust.  Bradford—a trusted advisor to President Washington—went on to become the second Attorney General of the United States.  On July 20, 1786, John Adams himself made this entry in his diary, borrowing an Enlightenment idea directly from Beccaria’s treatise:  “Every Act of Authority, of one Man over another for which there is not an absolute Necessity, is tyrannical.”

Public opinion on capital punishment has ebbed and flowed.  New polls, however, show that support for executions is falling.  The latest Gallup poll, from October 2014, shows that 63% of the public favors the death penalty for convicted murderers while 33% of respondents oppose it.  By contrast, in 1994, 80% of Gallup respondents expressed support for the death penalty for murderers, with just 16% of respondents opposing that penalty.  “These trends toward diminished support seem to be reflected in state death penalty laws,” an analysis of Gallup’s 2014 poll concludes, “as six U.S. states have abolished the death penalty since 2007, and no new states have adopted it.”

Not only is public support for executions down, but the number of executions is down too, moving from 98 in 1999 to 39 in 2013.  Even though juries are still “death-qualified,” the number of U.S. death sentences also has dropped from more than 250 per year in 1997 and 1998 to fewer than 100 per year in 2011 and 2012.  An ABC News/Washington Post poll released in June 2014 found that the majority of Americans actually prefer life without parole (52%) as the punishment for convicted murderers, with a smaller number (42%) wanting the death penalty.  In short, when given a viable alternative, and not just asked an abstract question about the death penalty, people generally choose LWOP sentences instead of executions.

The declining support for capital punishment, in fact, has a lot to do with Americans’ embrace of life-without-parole as a sentencing option.  While approximately 50,000 people in the U.S. are now serving LWOP sentences, the total number of death-row inmates is now just over 3,000.  California, which hasn’t carried out an execution since January 2006, still has 745 death-row prisoners—the country’s largest death row but not a particularly active place for executions.  Since 1978, California has executed a total of 13 inmates who, before their executions, languished on death row for an average of 17.5 years.

The dormancy of California’s death penalty is reflective of the ambivalence twenty-first century Americans feel about executions—an uneasiness that has only grown stronger since the days of the Founding Fathers.  In November 2012, Californians, by a 52% to 48% margin, narrowly rejected Proposition 34, which would have abolished California’s death penalty and switched all the state’s 700-plus death sentences to LWOP sentences.  Meanwhile, as Europeans have banned the export of lethal-injection drugs, legal battles have raged throughout America—including in California—over the legality of lethal-injection protocols, the primary method used to kill death-row inmates.

Direct challenges to capital punishment are increasing, too.  In July 2014, a federal judge in California, recognizing the sheer arbitrariness of the whole system, declared that state’s death penalty unconstitutional.  As U.S. District Judge Cormac Carney ruled in that case: “Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State.  It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed.”

As for the U.S. Supreme Court’s Eighth Amendment jurisprudence, it is—truth be told—an irreconcilable mess.  The touchstone of the Eighth Amendment is said to be “human dignity.”  Yet year after year, the Supreme Court permits executions, many of which are botched and all of which corrode society’s moral compass as the government resorts to killing—the very thing the law so rightfully condemns.  And death sentences and executions, as studies have shown, have become as arbitrary as ever, as freakishly imposed and inflicted as they were in 1972 when the Supreme Court, in Furman v. Georgia, once declared death penalty laws violated the Eighth and Fourteenth Amendments.

Executions are now heavily concentrated in one region, the South, and death sentences are largely meted out on the basis of geography or race or the poor quality of one’s counsel.  Although death penalty statutes, unlike in Frederick Douglass’s time, are now neutral on their face, those who kill whites remain much more likely to get the death penalty than those who kill blacks.  Statistics from the Washington, D.C.-based Death Penalty Information Center show that, of the persons executed for interracial murder in modern times, 31 inmates have been executed where the victim was black and the defendant was white.  In contrast, 289 inmates—a far higher number—have been executed in circumstances where the victim was white and the defendant was black.

In reality, the Supreme Court’s Eighth Amendment case law has become a kind of bizarre, Dr. Jekyll and Mr. Hyde jurisprudence.  On the one hand, the Eighth Amendment protects prisoners from harm.  Prison guards cannot gratuitously assault inmates without provocation, and Eighth Amendment precedents require that inmates be fed and clothed and be protected from the elements.  In Hope v. Pelzer, the Supreme Court ruled in 2002 that it was an “obvious” Eighth Amendment violation for Alabama prison officials to handcuff an inmate to a hitching post and leave that shirtless inmate out in the sun, causing dehydration and a sunburn.

On the other hand, the Eighth Amendment—as currently interpreted by the nation’s highest court—allows inmates to be killed, a far worse fate than that dealt with in Hope v. Pelzer.  In cases like Baze v. Rees, a 2008 case adjudicating the constitutionality of Kentucky’s three-drug protocol, the Court has ruled that, under the Eighth Amendment, it is permissible for inmates to be injected with lethal chemicals.  After a brief period of no executions in the pre-Baze period, U.S. executions thus resumed after Baze, albeit sporadically and in only a limited number of states.

In effect, American death-row inmates under the prevailing Eighth Amendment regime are protected from harm up until the very moment of their executions.  This Dr. Jekyll and Mr. Hyde approach, giving the Eighth Amendment a split personality, makes no logical sense.  And at some point, the Supreme Court will no doubt have to confront this fact—and its unprincipled reading of the Eighth Amendment’s Cruel and Unusual Punishments Clause.   Ironically, non-lethal corporal punishments such as ear cropping, the pillory and whipping—the latter closely associated with slavery—have already, for decades, been abandoned in the U.S. penal system.

Indeed, non-lethal corporal punishments have long been considered unconstitutional.  Way back in 1968, Harry Blackmun—then a judge on the U.S. Court of Appeals for the Eighth Circuit—ruled that the infliction of lashes violated the Eighth Amendment prohibition on “cruel and unusual punishments.”  “[W]e have no difficulty in reaching the conclusion that the use of the strap in the penitentiaries of Arkansas is punishment which, in this last third of the 20th century, runs afoul of the Eighth Amendment; that the strap’s use, irrespective of any precautionary conditions which may be imposed, offends contemporary concepts of decency and human dignity and precepts of civilization which we profess to possess.”

In the twenty-first century, the U.S. Supreme Court continues to adhere to its lofty sounding “evolving standards of decency” test.  Yet the central fact—and the major, and inexplicable, Eighth Amendment anomaly—remains: American executions continue while non-lethal bodily punishments, appropriately rejected over time, may no longer be used.  Excluding large segments of the population from jury service in capital cases, whether on the basis of their political views or otherwise, is also incredibly strange—and appalling—because juries are supposed to serve as the conscience of the community.

The use of “death-qualified” juries—and the striking of prospective black and Hispanic jurors in cases such as Chappell v. Ayala—is all the more disturbing because the U.S. Supreme Court uses jury verdicts, along with legislation, to gauge “the evolving standards of decency that mark the progress of a maturing society.”  That Eighth Amendment standard, established in 1958, was first set forth in the Court’s decision in Trop v. Dulles.  By allowing death penalty opponents to be routinely struck from juries, the Supreme Court is, in essence, predetermining—and skewing—the jury verdict data it gathers before assessing society’s “evolving standards.”

For the Eighth Amendment to be read in a principled manner, as it should be, the death penalty needs to go.  The death penalty can be abolished legislatively on a state-by-state basis, and abolition efforts will no doubt continue on that front.  But as executions have become increasingly rare with the rise of LWOP sentences, the Supreme Court may soon be compelled to decide that executions have just become too freakish and arbitrary—in a word, too unusual—to be allowed any longer.

Already, more than 50% of U.S. executions are the result of criminal prosecutions in just two percent of U.S. counties.  A Supreme Court ruling that the death penalty violates the Eighth Amendment and the Fourteenth Amendment’s Equal Protection Clause would, certainly, help vindicate a long-standing principle against arbitrary government action and one that the Founding Fathers themselves embraced: that any punishment that goes beyond what is “absolutely necessary” is unjust—indeed, “tyrannical.”

In the founders’ time, it must be remembered, death sentences were then a mandatory penalty and penitentiaries were still being designed and built.  America’s first penitentiary—Philadelphia’s Walnut Street Prison—did not even open its doors until 1790, the year before the U.S. Bill of Rights was ratified.  Now, however, death sentence are discretionary in nature, maximum-security prisons are common, and Americans have gravitated to life-without-parole sentences to protect the public from harm.

With the ready availability of penitentiaries, and with the rise of LWOP sentences, executions can no longer be considered necessary.  Even with “death-qualified” juries, LWOP sentences for murderers have become the usual punishment, while death sentences have become truly unusual.

Criminals commit crimes, and heinous crimes such as murder reflect their callous disregard for life.  Punishments, like the U.S. Constitution, though, should reflect our values and those of our society as a whole.  Indeed, the U.S. Constitution itself should be interpreted in a manner that protects universal human rights, including human dignity and the right to be free from discrimination.  Executions have long been considered cruel—Dr. Benjamin Rush believed them to be improper for all crimes, as he said at Benjamin Franklin’s house in March 1787—and they have, over time, become highly unusual, too.

Instead of asking whether executions violate the “evolving standards of decency,” perhaps the Supreme Court should just focus on interpreting the language in the Constitution itself.  In the case of the Eighth Amendment, that means answering two basic questions: are executions cruel?  And have they become unusual?   The answer to both questions, fairly considered, is yes.

The Declaration of Independence, setting forth the American creed that Frederick Douglass, in another era, insisted Americans live up to, itself proclaims the “unalienable” right to life and “that all men are created equal.”  In looking for a principled interpretation of the U.S. Constitution’s Eighth and Fourteenth Amendments, one that no longer tolerates stripping minorities from juries or using barbaric punishments like the death penalty, a closer examination of the Constitution’s text—along with a reexamination of the Declaration of Independence and Cesare Beccaria’s writings—might be a good place to start.

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